Declaration of Heirs and Partition of the Estate in Portugal

The declaration of heirs (habilitação de herdeiros) is the act that declares who the heirs of a deceased person are and that there are no other persons who take precedence over them or share with them in the succession. It is the first step to access accounts, register real estate and partition the estate in Portugal.

Notarial declaration of heirs

Made by public deed at a notary's office, with the statement of three persons whom the notary considers trustworthy or, alternatively, of the estate administrator (cabeça-de-casal) (Arts. 82 and 83 of the Notarial Code (Código do Notariado)). It has the same effects as a court declaration of heirs and serves as title for land, commercial and vehicle registrations and for withdrawing money or other assets (Art. 86).

IRN Inheritance Desk

The Institute of Registries and Notary (IRN) offers the Inheritance Desk (Balcão das Heranças) at civil registry offices, at some land and commercial registry offices and at Citizen Shops (Lojas de Cidadão). There, in a single procedure, it is possible to complete the declaration of heirs, the registration of the assets and the partition, as well as report the death to the Tax Authority, request the estate's NIF and handle the IMI exemption for the inherited home (justica.gov.pt; gov.pt). The rules are set out in Articles 210-A to 210-Q of the Civil Registry Code (Código do Registo Civil). Partition at the Desk requires the estate to include at least one asset subject to registration, such as real estate, a vehicle or a company share.

Who starts the process

The procedure is requested by the estate administrator, their legal representative or an attorney-in-fact. The role falls, in this order, to the surviving spouse who is an heir or holds half of the marital property, the executor, the relatives who are legal heirs and the testamentary heirs (Article 2080 of the Portuguese Civil Code); the interested parties may, by agreement, choose another person (IRN).

Costs at the Inheritance Desk

According to the IRN and the justica.gov.pt portal:

• declaration of heirs: €150;
• declaration of heirs with registration of the assets in co-ownership: €375;
• declaration of heirs, partition and registrations: €425;
• partition and registrations: €375.

Added to these amounts are fees for each additional asset, €50 when the estates of husband and wife are handled together, and the cost of consulting the registry databases. The amounts do not include the taxes due. At a notary's office, the cost follows the fee schedule of the chosen notary.

The notarial deed of declaration of heirs is accompanied by (Art. 85 of the Notarial Code):

• the death certificate of the deceased;
• civil registry certificates proving the heirs' kinship or marriage, or an equivalent document when it must be issued abroad;
• a full-text certificate of the will or of the deed of gift upon death, if any;
• a suitable document on the foreign law, when the succession is not governed by Portuguese law and the notary is not familiar with it (Art. 85(2)).

At the Inheritance Desk, the estate administrator provides the identification of all heirs, with name, place of birth, marital status and residence, their tax identification numbers (NIF), the list of assets with the values assigned and the terms of the partition agreement, if any (IRN; gov.pt). Records contained in the Portuguese civil registry are consulted by the service itself. If there is a will, its certificate must be submitted, with the death already annotated, requested from the notary's office where it was made.

What if there is no will?

Whether or not a will exists in Portugal is proven by the certificate on the existence of a will, deed of renunciation or repudiation of an inheritance or legacy, issued by the Central Registry Office (Conservatória dos Registos Centrais). The request can be made online, for €25; if the death occurred abroad, the death certificate is attached (justica.gov.pt). When the deceased also had ties to Brazil, it is advisable to also obtain the CENSEC certificate on wills executed in Brazil.

In Portugal, there is no inheritance tax by that name: gratuitous transfers are subject to Stamp Duty (Imposto do Selo) at a rate of 10% (item 1.2 of the General Table of the Stamp Duty Code (Código do Imposto do Selo)), on assets deemed to be located in Portugal (Article 4(3)).

Deadline and who files

• The estate administrator (cabeça-de-casal) must report the death and submit the list of assets, on the official form (Modelo 1), by the end of the 3rd month following the month of death (Article 26(1) to (3)).
• The deadline may only be extended, by up to 60 days, for a justified and proven reason (Article 26(5)).
• If the estate administrator identifies all beneficiaries, they are exempt from filing their own report (Article 26(4)).
• If the deceased did not reside in Portugal, the assessment is carried out by the tax office of the place of residence of the estate administrator or of the beneficiary (Article 25(2)).
• The Inheritance Desk can file the report as part of its own procedure. If the process starts after the deadline, the service notifies the Tax Authority, for the imposition of fines (IRN).

Exemptions

• The spouse or de facto partner, descendants and ascendants are exempt from item 1.2 (Article 6(1)(e)). Siblings, nephews and nieces and other heirs pay 10% on the assets located in Portugal.
• Item 1.1 (0.8%) applies to acquisitions of real estate for consideration or by gift and does not apply to transfers upon death.
• The exemption does not waive the reporting obligation: without the report, banks cannot authorize the withdrawal of inherited funds (Article 63-A).

Land registration of real estate

• With the declaration of heirs, the heirs can register the property in co-ownership without specified shares (Article 49 of the Land Registry Code (Código do Registo Predial)). This registration, while the estate remains undivided, is not mandatory (Article 8-A(1)(a)).
• Once the partition is made, registration of the acquisition in favor of the heir to whom the property was allotted must be requested within two months of the deed (Article 8-C(1)). As a rule, the obligation lies with the entity that executed the deed (Article 8-B(1)). At the Inheritance Desk, registration is carried out right after signing.
• A late request entails payment of an amount equal to the fee due (Article 8-D).
• To sell the property, it must be registered in the name of the seller (Article 9(1)). Partition is one of the exceptions to this rule.

Bank accounts and investments

The declaration of heirs is sufficient title for the withdrawal of money and other assets (Article 86(1)(e) of the Notarial Code (Código do Notariado)). However, the bank may only authorize the withdrawal if Stamp Duty has been paid or, if an exemption applies, if the report has been filed (Article 63-A of the Stamp Duty Code). Deposits in banks headquartered or with an establishment in Portugal are deemed to be assets located in Portugal (Article 4(4)(e)).

Other acts at the Desk

In the Inheritance Desk procedure, the registry service may also arrange payment of IMT, if due, request a change of the heir's tax address, apply for the IMI exemption for the own permanent home and update the property's entry in the tax register (IRN).

If all interested parties agree, the partition is made at the registry offices or before a notary; if not, inventory proceedings are used (Article 2102 of the Portuguese Civil Code).

Partition by agreement

• At the notary's office, by deed of partition, which may be executed together with the declaration of heirs.
• At the Inheritance Desk, provided that the estate includes at least one asset subject to registration. It is possible to partition only part of the estate and to include a bank loan, secured by a mortgage, to pay equalization amounts (tornas) (IRN). A prior appointment is required, and all parties must be present, in person or through a representative, on the day of the act.

Inventory proceedings

Since Law 117/2019 (Lei), inventory proceedings may be filed, at the choice of the person initiating them or by agreement of all, in the courts or at notary's offices (Article 1083(2) of the Portuguese Code of Civil Procedure). They must be judicial when they depend on other court proceedings, when requested by the Public Prosecutor's Office, and in certain cases involving heirs who lack capacity or are absent with unknown whereabouts (Article 1083(1)). If the inventory is opened at the notary's office without the agreement of all, interested parties representing more than half of the estate may request that it be transferred to the court (Article 1083(3)).

Inventory proceedings serve to end the co-ownership of the estate and partition the assets, but also to list the estate assets when there is no partition to be made (Article 1082). Learn more on our page on inventory proceedings.

Living in Brazil does not prevent anyone from being declared an heir or from taking part in the partition in Portugal. However, the representation and the documents must be organized in advance.

Powers of attorney

An heir who cannot be present is represented by an attorney-in-fact. For notarial acts, the power of attorney may be executed as a public instrument, as a written and signed document with in-person certification of handwriting and signature, or as an authenticated document (Article 116 of the Notarial Code). The power of attorney must grant specific powers for the intended acts, such as the declaration of heirs, partition, acceptance of the inheritance, sale or registrations.

Brazilian documents and the apostille

The Notarial Code accepts documents issued abroad in accordance with local law, without prior legalization, although legalization may be required if there are well-founded doubts about authenticity (Article 44). Brazil and Portugal are parties to the Hague Apostille Convention, and the apostille is the simplest way to dispel those doubts — so it is advisable to apostille in Brazil the powers of attorney and certificates that will be used in Portugal. Documents in a foreign language require translation (Article 44(3)); Brazilian certificates, written in Portuguese, generally do not.

NIF and tax representative

Each heir needs a Portuguese tax identification number (NIF) for the declaration of heirs at the Inheritance Desk and for the partition. The NIF can be requested from Brazil, through an attorney-in-fact. Anyone residing outside the European Union and the European Economic Area must, as a rule, appoint a tax representative resident in Portugal (Article 19(6) of the General Tax Law (Lei Geral Tributária)). This obligation does not apply to those who sign up for electronic notifications — single digital address, notifications and summons on the Tax Authority portal (Portal das Finanças) or electronic mailbox (Article 19(15)).

Recognition of Brazilian judgments

A Brazilian judgment on private rights only takes effect in Portugal after it has been reviewed and confirmed by the Court of Appeal (Tribunal da Relação) (Arts. 978 to 980 of the Portuguese Code of Civil Procedure). This may be necessary, for example, when a divorce or paternity judgment issued in Brazil determines who is the spouse or child of the deceased. Recognition is not necessary when the decision is relied upon in proceedings pending in Portugal merely as evidence (Article 978(2)). For deeds executed at a Brazilian notary's office, such as a divorce or an out-of-court partition, whether recognition is needed depends on the act and its intended purpose and must be analyzed case by case. See our page on recognition (review) of foreign judgments.

Two procedures, one estate

• Inventory proceedings and partition of assets located in Brazil fall within the exclusive jurisdiction of the Brazilian courts (Art. 23, II, of the Brazilian Code of Civil Procedure (CPC)), and an out-of-court inventory deed at a Brazilian notary's office cannot cover assets abroad (CNJ Resolution 35/2007, Art. 29). Assets in Portugal are dealt with in Portugal.
• In Portugal, when the estate includes assets in a third State, the authority deciding the succession may, at the request of one of the parties, decline to rule on those assets if its decision would not be recognized in that State (Article 12 of Regulation (EU) No 650/2012).
• The deadlines run in parallel: in Brazil, inventory proceedings must be opened within two months of the opening of the succession (Art. 611 of the CPC); in Portugal, the report to the Tax Authority is due by the end of the 3rd month following the death.
• Whenever possible, the law governing the succession should be the same in both procedures, and each heir's forced heirship share (legítima) should be calculated with a view of the entire estate.

For an overview of an estate with assets in both countries, see the international succession page.

With offices in São Paulo and in Albufeira, Sene & Araújo handles estates with assets in Portugal, including when the heirs live in Brazil.

1. Initial assessment: assets in Portugal, existence of a will in both countries, applicable law and heirs.
2. Documentation: certificates, powers of attorney, apostilles and NIF applications for non-resident heirs.
3. Report to the Tax Authority for Stamp Duty purposes, within the deadline, with the list of assets.
4. Declaration of heirs at a notary's office or at the Inheritance Desk, representing heirs who are not in Portugal.
5. Partition by agreement or, without agreement, inventory proceedings at the notary's office or in court.
6. Registrations and banks: land registration of real estate, bank accounts, vehicles and shareholdings.
7. Coordination with Brazil: Brazilian inventory proceedings, recognition of judgments in Portugal and STJ recognition when necessary.